Legal experts lay out plan for former Patriots TE

The case against Aaron Hernandez that the public has seen so far is about as damning as it gets. The public, understandably, has all but put the former Patriots tight end in jail for life.

Not so fast, says a Boston-area criminal defense attorney. As it stands right now, a year to 18 months before a trial would begin, Hernandez’s high-powered defense team has more than a few paths to take to get their client acquitted of murdering Odin Lloyd.

The biggest, according to Michael DelSignore, who practices in Bristol County, Mass., where Hernandez is jailed: The prosecution’s likely two big witnesses, alleged accomplices Carlos Ortiz and Ernest Wallace, have real credibility problems--and the weapon used to kill Lloyd has not been found.

“Without a weapon, the prosecution has to rely on the evidence it has, which might not stand up, and on the two witnesses with criminal pasts and might be unreliable,’’ DelSignore said.

Based on that, he said, observers can expect the defense to present a radically different theory of the murder than what prosecutors have offered.

“They can say that Aaron didn’t know anything about it, and that they’re shifting the blame to him,’’ said DelSignore, who has no connection to the case or anyone involved in it, but who has worked frequently in the county courthouse in Attleboro (where Hernandez was first arraigned after his June 26 arrest), and has blogged about it and other high-profile area cases at MassachusettsCriminalDefenseLawyerBlog.com.

“They’ll also present evidence that (Hernandez) has a drug problem, that he wasn’t aware of what his accomplices were doing, and that he wasn’t responsible for the crime,’’ DelSignore added.

The five gun-related charges Hernandez faces, in a notoriously-harsh state for gun laws, are a different story, DelSignore said. The two most serious charges each carry maximum 10-year sentences, and the least-serious gets an 18-month sentence. “He’d get pretty close to the maximum for those charges if the judge rules as they generally do,’’ he said.

Before the murder case ever goes to trial, he said, the defense will try to get as much of the evidence as possible thrown out. A major target will be the search warrants themselves: If his lawyers can convince a judge that they were illegally or improperly obtained, evidence like the home-surveillance video of him holding a gun wouldn’t survive and would weaken the case.

If the warrants were granted without probable cause, DelSignore said, the tapes would be “the fruit of a search with no basis.’’ Other video – of Hernandez, Ortiz and Wallace near the scene of Lloyd’s slaying – would have less impact, he said.

Meanwhile, it would be difficult to make a case for Ortiz’s claim to investigators that Wallace told him that Hernandez had done the shooting, since part of their case rests on all three being on the scene at the same time.

The defense, DelSignore said, would point out that such a claim “doesn’t make any sense.

“Would you rely on these guys as witnesses, and on the product of an illegal search?” he said.

The other critical part of the process for the defense, he said, would be jury selection – a challenge in any case, but more so in a high-profile case in which the defendant is a celebrity. The judge would be the biggest safeguard against a jury biased in either direction. Lawyers for both sides will submit questions for jury candidates and will have challenges for cause and peremptory challenges (without an explicit reason) at their disposal. But the judge will ask the questions and will have a lot of leeway in weeding out prejudices.

Still, the defense lawyers will have to be on guard – and expect Hernandez to spend his considerable resources on a jury consultant, DelSignore said. Their preference? “People with very smart, technological, scientific backgrounds,’’ he said, “because a big part of their case is a lack of evidence. They’ll want people who can understand that what they have might not be real, concrete evidence.”

The prosecution, meanwhile, has a more recognizable challenge with the jury pool: “Part of what they’ll do is find out whether they’re fans of his, whether they’ll be star-struck. It’s going to depend on what evidence they have, but there might very well be jurors who just can’t believe he did this, and won’t want to send him to jail.’’

By the time Hernandez goes on trial for murder, DelSignore said, a decision will be made to file or not file charges in the other cases. If they are, while they will be tried separately, they will help the prosecutors’ case for motive, state of mind and a history of similar acts.

That will be a blow to the defense, he said. So would any proof that Hernandez destroyed his home-surveillance system and cell phone – under Massachusetts law, he said, that would be considered “conscious proof of guilt.’’

Otherwise, the game plan right now, a long way from the case going to trial, is not complicated.

“Their defense will be that they can’t find the gun,’’ DelSignore said, “that he didn’t know what those other guys were doing, or were going to do, and that there’s no proof that he pulled the trigger.